175 A.D. 165 | N.Y. App. Div. | 1916
Lead Opinion
The ownership of a savings bank account is in dispute. A husband claims it is his. A wife claims it is hers. The learned trial court has decided in favor of the wife, and the husband appeals.
The parties married in the early part of 1889. At that time the wife had $1,000, which was used in the purchase of furniture for the home. The husband, according to the wife’s statement, had but $100; according to his own statement he had $2,000. With his money, whatever the amount, he opened a tailoring business. He prospered, and property, real and personal, accumulated. The wife helped in the store and attended to her household duties and to the serious business of raising a family. In August, 1894, shortly after the birth of the second child, the husband drew a check for $1,000 and deposited it in a savings bank in his wife’s name. Later there was a deposit of $2,000, a withdrawal of $2,000 and a further deposit of a like amount. So-the amount now standing in the wife’s name, and in dispute, is $3,000.
In the early and struggling years of their married life the pair lived harmoniously; but of later years the husband became estranged from the wife. He addressed her in typewritten communications only, and then as “Mrs. Reed” or “ Madam.” His relations with his children were also strained.
As the culmination of this domestic estrangement the husband laid claim to the ownership of the account, took physical possession of the bank book and demanded that the wife sign an order enabling him to make withdrawals therefrom.
The claim of the husband is that, having otherwise deposited to the interest limit in the bank, he made at the suggestion of the teller the deposit in his wife’s name in order that he might obtain additional interest. The reason is not convincing. If he wished to continue in control of his own funds, and at the same time be entitled to interest on all deposits, there was an easy way. In Williams v. Brooklyn Savings Bank (51 App.
The version of the wife, which we cannot say the trial court could not believe, is that, at the time the account was opened in her name, her husband said to her: “You have done all you could for me, and, * * * I give you this for yourself.” Until recently she always had possession of the bank book. At one time it was kept in a safe, of which she had the combination. At another time it was in a safe deposit box, to which she, holding a key, had access. At times she herself would take the book to the bank and collect the interest. Later, the husband, having retired from business and having more time at his disposal than she, would take the book and collect the interest for her. He would say to her: “Ray, here is your bank book. Should I get you yours also ? ” She would reply: “Yes, you can get my interest also.” On returning from the bank he would hand her the book and interest.
On the important point of the collection and custody of the interest money, the wife was corroborated by the testimony of the two sons of the litigants.
This is not the case of a gift alleged to have been made by a person now dead. We have the evidence of the disputants, and a question of fact controls the decision. I think the respondent has established the intent to make the gift, the delivery and acceptance, of the gift, and the possession and control by her of the gift.
In Beaver v. Beaver (117 N. Y. 421, 430) the court say: “ It may be justly said that a deposit in a savings bank by one person, of his own money to the credit of another, is consistent with an intent on the part of the depositor to give the money to the other. But it does not, we think, of itself, without more, authorize an affirmative finding that the deposit was made with that intent, when the deposit was to a new account,
The learned trial court may have been unhappy in the statement, incorporated in its opinion, that the deposit of the money in the wife’s name was prima facie a gift. The court had probably in mind the cases in line with Williams v. Brooklyn Savings Bank (supra), where it was held that the opening of a savings bank account by one William Williams “in trust for Owen Williams,” established prima facie an intention on the part of William to create a trust in favor of Owen. The statement of the trial court will, however, find support in Orr v. McGregor (43 Hun, 528, 533), where it is said: “While we think that the deposit of one’s own money in a savings bank to the credit of another, without any qualification expressed at the time, is of itself prima facie evidence of a gift to the latter of the fund deposited, an intent to the contrary may be shown, and the retention by the depositor of the deposit-book * * * is some evidence of intent not to perfect the gift at the time of making the deposit.” I think the context in that case will show that the alleged gift would have been held valid had not the depositor retained the book and withheld from the alleged donee all knowledge of the deposit.
I advise an affirmance of the judgment, with costs.
Jenks, P. J., and Putnam, J., concurred; Rich, J.; read for reversal, with whom Carr, J., concurred.
Dissenting Opinion
I dissent. The money was plaintiff’s own individual earnings. He says that in making the deposit he had no intention of making a gift to his wife; it was made in her name because he already had $3,000 on deposit to his credit, and acted on the advice of an officer of the bank; that the bank book was handed direct to him and thereafter remained continuously in his possession; that on January 23, 1895, five months after the initial deposit was made, without the knowledge of his wife, he
The learned trial court has found as a fact that the respondent delivered to the bank the sum of $3,000 given her by her husband, which it received on deposit, but I am unable to find any probative evidence supporting the finding. The evidence as to the withdrawal of the interest is that both the plaintiff and defendant, respondent, on different occasions received it, but is conflicting as to who used it, and in this connection it is to be noted that in July, 1909, when the plaintiff was in Europe, the semi-annual interest payable on the first day of the month was not withdrawn or credited on the book until
I think the respondent not only failed to sustain the burden of establishing a gift inter vivos within the rule declared by this court in Tompkins v. Leary (supra), but that the probative evidence so strongly predominates in favor of plaintiff’s contention that he never intended to, and in fact never did make the gift to the respondent, that the judgment should not be permitted to stand. I shall, therefore, vote for a reversal. •
Carr, J., concurred.
Judgment affirmed, with costs.
